Вы находитесь на странице: 1из 3

SOGA,

Discharge

To determine weather Amy has a claim against Happy Pets Ltd, it is necessary to determine
if Happy Pets Ltd has breached its duties to Amy as a consumer under the Sale of Goods Act
(SGA).

When a person purchases goods from another, there would be a contract of sale between
the seller and the purchaser. There are many rules regarding this transaction which is
outlined by the Sale of Goods Act (SGA).

Under the contract to supply the dog food to Amy by Happy Pets Ltd, there was an express
term that stated that Happy Pets Ltd will provide six months worth of supply of dog food
and it is to be paid for on a monthly basis. From this term, it can be deduced that the
payments for performance (delivery of dog food) are divisible across the months.

According to the case, Amy claimed that after the delivery of the first batch of dog food and
upon consumption, it caused her dogs to become ill and die within 2 weeks. Following this,
under Section 14(2B) of SGA which states that when the seller is selling in the course of
business, it is an implied term that the goods supplied under the contract will be of
satisfactory quality which includes safety and fit for purpose. Since the dog food supplied
under the contract was assumed to be the cause of death of Amys dogs, there might have
been a breach of S14(2). As such, Amy has the right to repudiate the contract and reject the
future goods (remaining batches of dog food) and claim for damages.

Following the establishment of a breach in contract, Amy can claim for damages against
Happy Pets Ltd. Give that there is an express limitation clause that states that any liability
for the defective product is limited to the contract price, Amy would only be able to claim
for liquidated damages limited to the contract price. However, according to Section 2(1) of
the Unfair Terms Act, the exclusion clause is invalid in relation to personal injury or death, as
was the case in the situation mentioned above. As such, Amy can seek remedies for
unliquidated damages, provided that she can prove that she suffered a loss from the deaths
of her dogs.

With respect to the prize monies, Amy will be unable to claim for expectation loss as she
had only intended to enter her dogs for the competition and had yet to, making it difficult to
prove that she had a real and substantial chance of obtaining the monies and be able to sue
for the chance [MK Distripark Pte Ltd v Pedder Warehousind & Logistics (S) Pte Ltd (2013)].
Additionally, it is difficult for Amy to raise the principle of Res Ipsa Loquitor, as the given
facts do not prove concretely that the cause of death is directly related to the consumption
of Happy Pets Ltds dog food. In contrast, Amy can claim for reliance loss resulting from the
illness of her dogs such as veterinary expenditure. In relation to her claims for distress and
damages for injured feelings, it is not possible for Amy to make such a claim because the
damages are considered to be too remote [Haron bin Mundir v Singapore Amateur Athletic
Association (1992)].

The above mentioned remedies can only be claimed in the event Happy Pets Ltd is found to
have breached the contract by causing the death of Amys dogs due to its product, as
mentioned by Section 14 of Sale of Goods Act. On the other hand, if Happy Pets Ltd can
either prove that the cause of death of the dogs was not directly due to the dog food
provided by them, but rather a third factor that resulted in a coincidental death that
occurred 2 weeks after the change in dog food consumption by the dogs, then Happy Pets
Ltd can defend itself from being liable for the deaths of Amys dogs, reducing their liability.
Or if found to be liable for the deaths of the dogs, the company is able to prove that Amy
did not mitigate her loss, meaning that she did not take reasonable steps to try and cure her
dogs, then she will receive less or no damages.

Upon consideration of the above facts, in my opinion Happy Pets Ltd should be liable for the
deaths of Amys dogs. Since Amy kept expensive pedigree dogs, it is reasonable to assume
that she constantly monitored and maintained her dogs health, especially given intentions
to enter her dogs into competitions for prize monies. Upon changing the type of dog food
given to the dogs, it is too big of a coincidence that the dogs fell ill and died within 2 weeks.
A probable cause of death could be the fact that the dog food may have had some form of
chemical or contamination that caused slow poisoning of the dogs, killing them.

In conclusion, it is clear that Happy Pets Ltd has neglected their duty of care and breached
Sections 14 of SGA and 2(1) of the Unfair Terms Act. These breaches would grant Amy a
right to make claims against Happy Pets Ltd and would allow her to terminate the contract
and claim for damages.

Given that Amy had already began work on the spa shop for her client, but did not complete
the entire performance to complete the project, the general rule states that she is not
entitled to any payments. However, if Amy can prove either substantial performance or that
the contract is divisible in nature, she may be able to make a claim.

With regards to substantial performance, if there is no complete performance but there is
substantial performance completed (generally assumed to be about 75% or more), Amy
may nonetheless be able to claim the contract price, less the cost of making good any
omissions or defects in the execution. However, if the obligation under the contract is an
entire one, even if there is substantial performance, it may not be possible to make the
claim. Based on the nature of the contract which includes designing and renovating the spa
shop, it can be assumed that the contract requires complete performance, and as such Amy
will not be entitled to any payment whatsoever.

However, if the contract can be divisible into performance by parts, Amy would be able to
claim partial payment for the completed portion based on a quantum meruit basis
(payment based on the value of services mentioned). In this case, I believe that as the
contract requires two activities to be completed, designing and renovating, it is possible to
split the performance into two parts. As such if Amy has completed the designing of the spa
shop, she can claim payment for her designing service, based on the quantum meruit basis.

In conclusion, Amy should be entitled to partial payment for her designing services of the
spa shop, provided she has completed it.

Intellectual Property

Weather Sweet Secrets has a claim against Sweetest Secrets, it is necessary to determine if
Sweetest Secrets has infringed Sweet Secretss trade mark.

Trade marks are used to distinguish goods or services provided by a business from those
provided by others. Under Section 2 of the Trade Marks Act (TMA), a trade mark is basically
a sign capable of being graphically represented and which is capable of distinguishing goods
or services provided in the course of sale by one person from goods or services provided by
any other person. The term sign includes any letter, word, name, signature, numeral,
share, colour and aspect of packaging, or any combination thereof.

Given the facts that Sweet Secrets is a well-known cake shop in Singapore and has been in
operations since 1985, it can be assumed that the trade marks of Sweet Secrets is
registered. However, under TMA Section 7(1c) which states that if the mark is indicative of
the kind, quality, intended purpose, value, geographical origin, or time or production or
other characteristics of the goods or services, then it cannot be registered. Based on the
facts provided by the question, Sweetest Secrets cannot be registered as a trade mark
because it is a direct description of the goods (candies and sweets) as well as the quality.
Additionally, under Section 7(4) of TMA which provides that if the trade mark is contrary to
public policy or intended to deceive the public, Sweetest Secrets is too similar in name to
Sweet Secrets which may confuse the general public and cannot be registered. Hence,
Sweet Secrets can sue Sweetest Secrets for inappropriate registration of trademark.

Under Section 27(3) outlines that a person infringes a trademark which is well known in
Singapore if without the consent of the proprietor of the trademark, he uses in the course
of trade a sign which is identical with or similar to the trademark, in relation to goods or
services which are not similar to those for which the trademark is registered, the use of the
trademark in relation to those goods or services would indicate a connection between those
goods or service and the proprietor, the use of the trademark in relation to those goods or
services would indicate there exists likelihood of confusion on the part of the public because
of such use, and the interests of the proprietor are likely to be damages by such use. Since
Sweet Secrets has been in operation since 1985 and is a well-established cake shop, using
the trade mark Sweetest Secrets may cause the public to form a connection between the 2
shops and get misguided and confused. As such, this likelihood of confusion on the part of
the public will cause the interests of Sweet Secrets to be damaged by such use. Hence,
Sweet Secrets can sue Sweetest Secrets for infringement of trademarks and seek an
injunction, obtain damages and account for profits made, by virtue of Section 31 of TMA.

In conclusion, Sweet Secrets is able to seek an injunction against Sweetest Secrets
registered trademarks for breach of sections 7(1), 7(4) and 27(3) of TMA and therefore can
obtain damages and account for profits made.